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Petitioner: FAREED AHMED A. DAYO VS Respondent: CHIEF MINISTER SINDH through Principal JUDGMENT
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Zulfiqar Ahmad Khan Title:FAREED AHMED A. DAYO vs CHIEF MINISTER SINDH through Principal
JUDGMENT
Reported As: PLD 2017 Sindh 214 Result: Petition allowed Judgment JUDGMENT SAJJAD ALI SHAH, C J.---The Petitioner through the instant petition has challenged the appointment of the Respondent No,4 (Barrister Murtaza Wahab Siddiqui) as Adviser to the Chief Minister Sindh with the portfolio of Law, Enquiries . and Anti-Corruption Establishment, the Chairman, Board of Governors for Law Colleges in Karachi as well as Pro Vice Chancellor of Shaheed Zulfiqar Ali Bhutto University of Law. The Petitioner additionally after removal of Respondent No,4 from the position of Chairman, Board of Governors for Law Colleges seeks the reconstitution of the Board. The Petitioner initially had challenged the Notification No,SOVI(SGA&CD)13 (130)/2015 and No, SOVI(SGA&CD)13 (130/2015 dated 30.04.2015 and 21.05.2015 respectively whereby the Respondent No,4 was appointed as Adviser to the Chief Minister and subsequent was conferred with the portfolio of Law and was assigned the status of Provincial Minister. However, during the pendency of the instant petition, there was a change to the office of the Chief Minister and consequently two fresh Notifications bearing No, SOVI(SGA&CD)2- 1/2016 and SOVI(SGA&CD)2-1/2016 both dated 30.07.2016 were issued whereby, the Respondent No,4 was again appointed as Adviser to the Chief Minister and was conferred with the portfolio of Law, Enquiries and Anti-Corruption Establishment with the status of Provincial Minister, etc. Mr. Dayo while referring to the provisions of Articles 90 to 93 and Articles 129 to 131 of the Constitution which deal with the Federal and Provincial Government respectively contended that the Constitution provides a well-structured mechanism for the use of executive authority whereby the executive authority of the Federation is to be exercised in the name of President but through the
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Prime Minister (a chosen representative of the people) either directly or through the Federal Ministers (which are also the chosen representatives of the people). The Constitution further provides that there shall be a Cabinet of Ministers with the Prime Minister as its head to aid and advise the President in the exercise of his functions. Such Cabinet as provided in Clause (6) of Article 91 shall collectively be responsible to the Senate and the National Assembly. The Constitution, further per Article 93 provides that the President on the advice of the Prime Minister can appoint no more than five Advisers on such terms and conditions as he may determine and by virtue of Clause 2 (which provides for the application of Article 57 to an Adviser), such Advisers have the right to speak and otherwise take part in the proceedings of either house or a joint sitting but are not entitled to vote. Likewise, the executive authority of the Province though is exercised in the name of Governor but through the Chief Minister (again a chosen representative of the people), either directly or through provincial ministers. In the same pattern as provided for the Federal Government, the Constitution also provides for a Cabinet of Ministers with the Chief Minister as its head to aid and advise the Governor in the exercises of his functions. Again, just like the Federal Government, the Cabinet of the Provincial Ministers is collectively held responsible to the Provincial Assembly. Clause (11) to Article 130 empowers the Chief Minister to appoint not more than five Advisers, but contrary to the scheme provided for the Federal Government there is nothing in the Constitution in terms of which the Provincial Advisers have right to speak and/or to take part in the proceedings of the Provincial Assembly. It was contended by Mr. Dayo that the conferring of the portfolios of Law, Enquiries and Anti-Corruption Establishment and the grant of status of Provincial Minister upon the Respondent No,4, amounts to exercise of the executive authority by an Adviser who is a handpicked individual and not a chosen representative of people, which is against the mandate given to the Chief Minister and which is in violation of the scheme of Constitution which requires the exercise of executive authority through chosen representative of the people only, who before entering their office must also take oath of performing their functions, honestly and to the best of their ability, faithfully in accordance with the Constitution of Islamic Republic of Pakistan as provided in the Third Schedule of the Constitution, whereas, the Advisers neither are under the oath nor are answerable to the Cabinet or the Assembly thus can act scot-free. Mr. Dayo while referring to the preamble of the Constitution contended that the entire scheme of the Constitution require the exercise of executive authority through the chosen representative of the people and therefore, exercise of the executive authority by the Respondent No,4 who is a non-elected person, is blatant violation of the Constitution. ' Mr. Dayo, further while referring to. Article 140 of the Constitution, as well as Rule 4 of the Conduct of the Legal Affairs of the Government argued that it is the duty of the Advocate General (who is the principal law officer of the Province) to give advice to the Provincial Government upon such legal matters and to perform such other duties of a legal character as may be referred or assigned to him by the Provincial Government and therefore, in the presence of the Advocate General there was no room for the appointment of the Respondent No,4 as an Adviser on law. Mr. Dayo further contended that though the Constitution empowers the Chief Minister to appoint not more than five Advisers but such power in the absence of any criteria provided for is to be exercised justly and fairly and not to accommodate the party loyalists. Per counsel, the Respondent No,4 only holds a law degree with mere six years standing at the bar and had no pre-requisite qualification even for the appointment of an Adviser let alone the most important portfolio of Law, Enquiries and Anti- Corruption Establishment be given to him. At the end, Mr. Dayo argued that with such meager qualifications, the Respondent No,4 has been additionally appointed as Chairman, Board of Governors for Law Colleges of Karachi which position was always adorned by renowned jurist or educationists such as Vice Chancellor of Karachi University or Law Ministers with long standing at Bar and lastly by Mr. Farooq H. Naek, Senior Advocate Supreme Court who remained Law Minister,
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Chairman Senate and Acting President of Pakistan. Per Counsel, even the Members of the Board are senior advocates, Advocate General, Law Secretary and a High Court Judge (as a nominee of the Chief Justice) and therefore, the appointment of a law graduate with only six years' standing is blatant and rude misuse of the authority. Mr. Dayo further submitted that the Respondent No,4 has also been appointed as Pro Vice Chancellor of Shaheed Zulfiqar Ali Bhutto University of Law, which is against the spirit of Board of Governors' notification dated 07.08.1978. Mr. Dayo informed the Court that the Respondent No,4 is even attending the meetings of the Judicial Commission of Pakistan which in accordance with Article 175-A(5)(iii) could only be attended by the Provincial Law Minister and not by an Adviser. Mr. Dayo in support of his submission placed reliance on the Judgments as Ahmad Yousuf All Rizvi v. Munawar Ali Butt (PLD 2000 Karachi 333), Shah Ahmed Khan v. Government of Punjab(PLD 2007 Lahore 191),American International School System v. Mian Muhammad Ramzan (2015 SCMlit 1499), Abdul Haq and others v. Province of Sindh and others (PLD 2000 Karachi 224) and Karachi Cooperative Housing Societies Union Ltd. v. Government of Sindh and others (1990 MLD 389). He accordingly prayed that both the notifications No, SOVI(SGA&CD)2-1/2016 and SOVI(SGA&CD)2-1/2016 dated 30.07.2016 as well the Respondent No,4's appointment as Chairman, Board of Governors of Law Colleges, as well as, Pro Vice Chancellor, Shaheed Zulfiqar Ali Bhutto University of Law be declared illegal and be quashed. ' On the other hand, Mr. Makhdoom Ali Khan, learned Counsel for the Respondent No,1 by opening his line of arguments, raised few preliminary objections, which included that prayer clauses (c), (e), (f) and (g) relate to the appointment of the Respondent No,4 to the Board of Governors, and with regards prayer clauses (a) and (b), learned counsel submitted that these two impugned Notifications dated 30.04.2015 and 21.05.2015 have already been superseded by Notifications dated 30.07.2016, therefore, technically speaking these notifications are no more in the field. After raising these preliminary objections, the learned counsel's entire thrust was towards the two Notifications of 30.07.2016, in terms whereof the Respondent No,4 was appointed as an Adviser and simultaneously through the other Notification of the even date, he was given portfolio of Law, Enquiries and Anti-Corruption Establishment. The learned counsel vehemently argued that the petitioner is not an aggrieved person under Article 199 of the Constitution and since no occasion or cause of action has accrued in his favour to institute the instant Constitutional petition, and since no personal loss has occurred nor any order has been passed which had created or taken away any right or benefit of the Petitioner, therefore, he has no locus standi to file the instant petition. In support of his contention he placed reliance on a number of case-law. ' Without getting into the details of the cited by the learned counsel, his attention was drawn to the fundamental principle laid down in the case of Shah Ahmed Khan v. Government of Punjab (PLD 2007 Lahore 191) where the Court held that in cases where State is in violation of any provision of the Constitution, every citizen. is aggrieved and can competently bring a Constitutional petition. Thereafter, the learned counsel very methodologically and meticulously led us through various articles of the Constitution and to the provisions of the Sindh Advisers (Appointment, Powers, Functions, Salaries, Allowances and Privileges) Act, 2003 and to the Sindh Government Rules of Business, 1986 to show that neither the Constitution; the 2003 Act nor the Rules of Business prescribe any qualification or criteria for the appointment of Advisers, therefore, the Chief Minister has absolute, unhindered and unchallengeable authority to appoint any person as his Adviser. To assist us, the learned counsel took us to Section 4(1) & (2) of the said 2003 Act, which we reproduce hereunder:-- 4(I). The Chief Minister may, in his discretion from time to time advise the Governor to appoint such number of persons as he considers necessary, to be Advisers who shall hold office during the pleasure of the Chief Minister.
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(2) An Adviser shall exercise such powers as may be delegated and perform such functions as may be assigned to him by the Chief Minister." ' Explaining the aforesaid provisions, the learned counsel stated that it is wholly, solely and unconstrained pleasure of the Chief Minister as to whom he considers fit to appoint him her as an Adviser. The learned counsel took us to Rule 7(ii) of the Rules of Business, which we reproduce hereunder:-- "7(ii). The Chief Minister may, in respect of any Department, delegate all or any of his powers under these rules to a Minister or an Adviser or Secretary of that Department." ' Through a combined reading of the above reproduced provisions, the learned counsel contended that the power of the Chief Minister to appoint an Adviser is not hindered by any prescribed criteria or qualification, therefore, he (for example) in principal can actually appoint a Milkman to be a Law Adviser, if he pleases to do so. Subsequent thereto, the learned counsel took us to various Articles of the Constitution, which set different offices and departments to show that in fact no qualification is even required for many of the other Constitutional posts envisaged through the length and breadth of the Constitution. ' In respect of Article 41, the learned counsel submitted that the post of President does not prescribe any educational qualification and similar is the case for the Speaker, Deputy Speaker of National Assembly, Chairman and Deputy Chairman of the Senate, Prime Minister, the Cabinet, Federal Ministers and Ministers of the State etc., and to the extent that under Article 242 (1A) and (1B), there is no prescribed qualification for the Chairman of the Public Service Commission, therefore, per counsel, there should not be any surprise if the Constitution does not prescribe any qualification for the appointment of Adviser under Article 130(11) by the Chief Minister or under Article 93 by the Prime Minister. With regards age, the learned counsel presented the case of Judges of the High Courts vis-a-vis the Hon'ble Judges of the Supreme Court and relying on Articles 177 and 193 submitted that while there is a requirement of age for the judges of High Courts (of 45 years), there is no restriction on the age of the Judges of the Hon'ble Supreme Court. Similarly, taking the example of, the President and the. Prime Minister, the learned counsel submitted that while a person of above 25 years of age can be appointed as a Prime Minister, the age for the President is prescribed as no less than 45 years, though the President has to act on the advice of the Prime Minister. By these examples, the learned counsel attempted to persuade us that while a legislation can fail the test of logic, but it has to be followed because that was the intention of law makers, and in the case of Constitution, the founding fathers. Following this analogy, the learned counsel took us to visit Articles 62 and 63 of the Constitution to show that there are no educational qualification prescribed for the Members of the Parliament or for the Ministers. Of special mention was the power of the President under Article 45, which per learned counsel is across the board and cannot be questioned as well as it is beyond any judicial scrutiny. In support of these assertions he placed reliance on Hakim Khan v. Government of Pakistan (PLD 1992 SC 595), Bhai Khan and others v. The State (PLD 1992 SC 14), Ghulam Hussain v. The State (1999 YLR 1596) and Abdul Malik v. The State (PLD 2006 SC 365). By these submissions, the learned counsel attempted to draw a parallel between the absolute (beyond judicial scrutiny) powers which a Chief Minister enjoys for the appointment of the Advisers since there are no qualifications prescribed by the Constitution nor any other piece, of legislation for such an appointment. ' To answer the complaint about shortcoming of qualifications and experiences of the Respondent No,4, who only has six years standing at the Bar, the learned counsel submitted that Justice William 0 Douglas, a leading judge of the US Supreme Court who served the Supreme Court for over 36 years, had only practiced law for no more than a few months. Having (to his satisfaction) established that there are no qualifications prescribed for the appointment of the Advisers, as well as, such an act of the Chief Minister being beyond the legal scrutiny, the learned counsel presented
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the Court with "Judicially Manageable Legal Standards" test. Elaborating on this, the learned counsel contended that Courts can only intervene where there are judicially manageable legal standards through law or where malice or irrationality is obvious in the acts of the executive, or where the authority seeming to have taken leave of his senses, which, per counsel, is not the case at hand. In support of his assertions, the learned counsel placed reliance on Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974-SC 151), Dr. Akhtar Hassan Khan v. Federation of Pakistan (2012 SCMR 455), Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1974 (2) AELR 680], Council of Civil Service Unions and others v. Minister for the Civil Service [1984 (3) AELR 935] and Nottinghamshire CC v. Secretary of State for the Environment [1986 (1) AELR 199]. Thrust of this line of arguments was once again that unless an act on the face of it is unconstitutional or illegality, malice or irrationality is patently obvious, Courts ought to keep their hands off from such acts, until unless the Courts come to a conclusion that the act was done by the person who has taken leave of his senses. ' At the final leg of his arguments, intending to cement his assertions, the learned counsel put forward to this Court the principle of Casus Omissus, which provides that if a situation is not provided for by a statute or a regulation, Courts cannot add words in the legislation and such act would amount to usurpation of the power of the legislator. In support of such contentions, the counsel placed reliance on Muhammad Ismail v. The State (PLD 1969 SC 241), Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary (PLD 2016 SC 637) and Zahid lobo! v. Hafiz Muhammad Adnan and others (2016 SCMR 430). ' On the other hand, Mr. Umer Lakhani Advocate appearing for the Respondent No,4 and Mr. Mustafa Maheser, AAG both adopted the arguments of Mr. Makhdoom Ali Khan. On our query as to why the Advocate General is not appearing, learned A.A.G. stated that since there could be the possibility of perceivable conflict of interest, therefore, Advocate General has volunteered to not to appear, but would be at the service of the Court if Court deems it necessary he will be present. After the parties concluded the arguments, Mr. Zameer Ghamro, learned Advocate General appeared and submitted that the provisions of the Constitution are very clear and Article 140(2) of the Constitution entrust the duty upon the Advocate General to give advice to the Provincial Government upon such legal matters, and to perform such other duties of a legal character as may be assigned to him by the Provincial Government. ' Heard the counsel and perused the record. It appears that the Petitioner's grievances emanate at four occasions, which are listed hereunder:-- 1. The appointment of Respondent No,4 as an Adviser to Chief Minister vide Notification dated 30.07.2016; 2. The allocation of portfolio of Law, Enquiries and Anti-Corruption Establishment to the Respondent No,4 vide Notification dated 30.07.2016; 3. The appointment of Respondent No,4 as Chairman of Board of Governors of Law Colleges in Karachi made through Notification dated 27.04.2016; and 4. The appointment of the Respondent No,4 as Pro Vice Chancellor of Shaheed Zulfiquar Ali Bhutto University of Law. ' Since the very foundation of the grievance of the Petitioner finds its roots from the appointment of Respondent No,4 as an Adviser under Article 130(11) of the Constitution, we find it appropriate to dilate on this aspect at the very forefront. To commence our analysis, it is apt that we look into the Constitutional provisions with regard to the appointment of Advisers. The Constitution envisages two types of Advisers. First type is the one specified under Article 93 (that became part of the Constitution by P.O. No,14 of 1985) which relates to the Advisers appointed by the Prime Minister. To look at this type of Adviser, we reproduce full text of the said Article in the following:
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"93(1) The President may on the advice of the Prime Minister, appoint not more than five advisers, on such terms and conditions as he may determine. (2) The provisions of Article 57 shall also apply to an Adviser." ' Since the above referred Article makes a reference to Article 57, we find it prudent to reproduce the same to give a complete picture as to the privileges of the Advisers appointed by the Prime Minister. "57. Right to speak in Majlis-e-Shoora (Parliament). The Prime Minister, a Federal Minister, a Minister of State and the Attorney General shall have the right to speak and otherwise take part in the proceedings of either House, or a joint sitting or any committee thereof of which he may be named a member, but shall not by virtue of this Article be entitled to vote." ' A combined reading of the above two Articles reflect that Advisers appointed under Article 93 upon the advice of the Prime Minister have the privileges provided under Article 57 of participating, speaking and otherwise taking part in the proceedings of either House. With this scheme of Constitution, we now look into the methodology provided for the appointment of Advisers to the Chief Minister. The only provision of the Constitution which deals with the Advisers appointed by the Chief Minister is embodied in the shape of Article 130(11) of the Constitution, which is reproduced in the following:-- 130(11). The Chief Minister shall not appoint more than five Advisers. A comparative reading of the provisions regarding appointment of Advisers by the Prime Minister vis-a-vis the Chief Minister suggests that the Advisers, which are appointed by the Prime Minister under Article 93 have a Constitutional mechanism of providing terms and conditions (to be determined by the President), whereas no such language is provided for the appointment of Advisers under Article 130(11) by the Chief Minister which makes it a mere master/servant relationship. Also the privilege of Article 57 extended to the Prime Minister's Advisers of speaking and otherwise taking part in the proceedings of the either House is not extended to those Advisers appointed by the Chief. Minister. As mentioned earlier, it is also important to note that the inclusion of the concept of Advisers for the Prime Minister under Article 93 was made by the amendment in the Constitution in the year 1985 (P.O. No,14/1985 Article 2, Schedule Item 20), whereas the provision for appointing Advisers for the Chief Minister was only brought into the Constitution through the 18th Amendment in the year 2010. ' With above findings, we now attempt to deal with the arguments put forward by the learned counsel for Respondent No,1 that Constitution is absolutely silent as to the criteria or qualification for the appointment of Advisers to the extent that a Milkman can be appointed as an Adviser on Law. In support of his assertions, the learned counsel reiterated his earlier contention that in cases where there are no legally manageable standards, the Court cannot fill the gap or prescribe any criteria and pre-requisite qualifications on the basis of the doctrine of casus omissus. In support of his contentions with respect to the application of the principle of casus omissus, the learned counsel placed reliance on the following case-law:-- i) Federation of Pakistan v. Saeed Ahmed Khan (PLD 1974 SC 151) ii) Dr. Akhtar Hassan Khan v. Federation of Pakistan (2012 SCMR 455) iii) Watan Party v. Federation of Pakistan (PLD 2006 SC 697) iv) Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1947 (2) All ELR 680] v) Council of Civil Service Unions and others v. Minister for the Civil Service (1984 (3) All ELR 935] vi). Nottinghamshire Country Council v. Secretary of State for the Environment [1986 (1) All ELR 199] vii). The Chairman East Pakistan Railway Board v. Abdul Majid Sardar (PLD 1966 SC 725) viii) Abdul Majeed Pirzada v. Federation of Islamic Republic of Pakistan (PLD 1990 Karachi 9. xi). Executive District Officer (Revenue) District Khushab at Jauharabad v. ljaz Hussain (2012 PLC (SC) 917)
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x). Ghulam Rasool v. Government of Pakistan (PLD 2015 SC 6) xi). Muhammad Ismail v. The State (PLD 1969 SC 241) xii). Dr. ,Zahid Javed v. Dr. Tahir Riaz Chaudhry (PLD .2016 SC 637). xiii). Zahid Iqbal v. Hafiz Muhammad Adnan (2016 SCMR 430) ' At this juncture, we in the open Court expressed our views that the Court has no intention whatsoever to lay down or prescribe any criteria or qualification for the appointment of Advisers by the Chief Minister. Further, following the dictum laid down in the case of American International School System (supra) where the apex Court laid down the principle that the Chief Minister, under his Constitutional dispensation is neither a King nor a Monarch but, is in the domain of trust and under Article 5 of the Constitution, he is obliged to obey the Constitution and law like any other ordinary citizen, and with regard to the exercise of the executive authority, the apex Court held that his discretion is neither brazen nor arbitrary but subject to the Constitution, since he has taken the oath to discharge his duties and perform his functions solely in accordance with the Constitution of Pakistan. ' Before we proceed, a few words about causes omissus, which literally means 'case omitted'. Application of the said principle is that a matter which should have been, but has not been provided for in a statute cannot be supplied…
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